Mr O’Brien, represented by Browne Jacobson LLP and Cloisters Chambers, brought a claim because, as a part-time, fee-paid judge, he was excluded from the judicial pension scheme. In July 2010 the Supreme Court sought ECJ input on:-

• Can national law determine whether or not judges are “workers who have an employment contract or employment relationship”?

• Can national law discriminate (a) between full time and part-time judges or (b) between different kinds of part-time judges in the provision of pensions?

The Advocate General considers that it is for national law to decide if a part-time judge is a worker, but there were limits to this discretion. Member States are not allowed to exclude complete categories of part-time worker.

The court does not need to follow the Advocate General’s opinion, but it unusual not to do so.

Posted by Edward Benson, specialising in: employment law; advises on contracts, policies and procedures, trade union negotiations; experienced in tribunals; contributes to seminars and training.

Edward Benson
0115 976 6211
ebenson@brownejacobson.com

The Court confirmed that “if there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other”. In keeping with this, the Court found against the party that was unable to advance any commercial reason why its interpretation should be adopted.

The case continues the move by the Supreme Court away from a strict (and some might say, overly literal) approach to the interpretation of contracts to a position where commercial purpose is generally more important than the niceties of language. This is welcome, but does it really amount to much more than the members of the Court confirming that they want to sleep well at night?

Posted by Tim Claremont, who specialises in domestic and international engineering and construction, including contractual and delay claims across all forms of dispute resolution; also contract drafting and negotiation.

Tim Claremont
0115 976 6520
tclaremont@brownejacobson.com

In Autoclenz Ltd v Belcher, 20 valeters described themselves as self-employed, paid their own tax, purchased their own insurance, uniforms and materials, and signed contracts which said they could choose when to attend work and send along a substitute worker. In fact, it was always intended that they would have to attend work and undertake that work themselves; the business would not have operated otherwise. The Supreme Court held that the valeters showed that the written agreement between the parties entered into was not reflected in the terms. So the true relationship was that of an employer and employee.

Previously, as long as the written contract is not a ‘sham’, (which was a high threshold test), the written terms prevailed. Now, this approach is too narrow. Employers should now bear in mind that a skilfully drafted written contract (which this one was) designed to make someone a contractor not an employee, will be disregarded if there is evidence (as there was here) that a different agreement was actually reached.

Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com

The first issue addressed by the Supreme Court was to confirm that the Stormtrooper helmet was not a “sculpture” and therefore not an “artistic work”. Under English law, the helmets were therefore protected by design right (which has a shorter term of protection) and not by copyright.

The second issue was whether US copyright could be enforced in the English courts. Overturning the Court of Appeal’s finding on this issue, the Supreme Court held that it could. In a world of prolific cross-border trade and e-commerce this has to be the right decision, giving rights holders increased protection against international piracy.

Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.

Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com

Former prima ballerina Elaine McDonald has health problems. She needs to urinate several times each night. She also needs assistance to use a commode to avoid falling. She wants her council to pay for a night time carer. The council prefers the cheaper option of providing incontinence pads. She alleges this is a breach of her human rights, and disability discrimination.

All 5 Supreme Court judges, and no doubt the country at large, sympathise with Ms McDonald. However 4 out of 5 were very clear that the council’s decision to supply incontinence pads was lawful.

The emotive nature of the claim is clear from the judges’ unusually robust language. Lady Hale, who agreed with Ms McDonald, said her claim should succeed in “a civilised society”. The other judges described her conclusions as “remarkable…surprising…regrettable” and to be “deplored”.

Strong stuff indeed.

Posted by Chris Webb-Jenkins, who specialises in defending claims against education and care providers and their insurers; risk management, stress, information management and child protection issues.

Chris Webb-Jenkins
0115 976 6175
cwebb-jenkins@brownejacobson.com

The case R (on the application of G) v The Governors of X School followed a complaint made against a teaching assistant (G) for inappropriate sexual conduct which eventually led to his dismissal. G was not allowed legal representation at the disciplinary hearing or the appeal hearing.

This decision is highly significant because in cases such as this, there is no entitlement for a teacher to take a lawyer to an internal disciplinary meeting.

Despite the majority opinion, this is not necessarily the end of the debate so far as other professions, such as the legal profession, are concerned. If the disciplinary process involved could determine definitely the ability of a person to carry on their profession, then there is still an argument to be had that legal representation should be allowed.

Posted by James Tait, who specialises in contentious employment law, executive removals, re-organisations, restrictive covenants and other post termination issues; familiar with tribunals & the Court of Appeal.

James Tait
0115 976 6553
jtait@brownejacobson.com

Certain terms of employment including pay rates were determined by nationally negotiated collective agreements between local authorities and the relevant unions. The question is: do changes to such collective agreements made after a TUPE transfer bind the transferee (‘dynamic’ interpretation), or does the transferee only have to comply with the terms of the collective agreement at the time of the transfer (‘static’ interpretation).

Muddled case law sits behind this. The ECJ have used the static interpretation (Werhof v Freeway Traffic Systems); domestic courts (Whent v T Cartledge Ltd) have taken the dynamic approach.

The Claimants will say their contracts entitle them to any changes made by collective agreements post-transfer (including pay increases). The employers will argue that is unfair because they have no say in what those changes are.

Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com

It is not necessary for a publisher to have identified the matters on which comment is based in sufficient detail to enable a reader to judge for themselves whether the comment is well founded. Instead, an honest comment  ”must explicitly or implicitly indicate, at least in general terms, the facts on which it is based” so that “the reader can understand what the comment is about and the commentator can, if challenged, explain…”. However, a defendant is not permitted to get support from facts that were not referred to by the comment, or facts that the defendant did not know when he made his comment.

This clarification allies the defence more closely with the realities of publication on the internet, in editorials and in blogs, and makes a little progress towards the more robust reform position currently proposed in the Defamation Bill. The ruling will please publishers and proponents of free speech – but on the other hand, it might make the judicial process for persons defamed in unbalanced attacks more difficult.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

Employment barristers at Cloisters, instructed by Browne Jacobson, are arguing that retired Recorder (part-time judge) Dermod O’Brien QC should be entitled to a judicial pension on retirement pro rata to the pension of full-time circuit judges. It is alleged that he has been discriminated against and that this is unlawful under European law as set out in the Part-time Workers Directive.

The Ministry of Justice has argued that this discrimination against part-time workers is not prohibited by European law, asserting that neither Mr O’Brien nor any judge “works” for, or is in an employment relationship with, anyone.

Part-time judges are paid pro rata to full time judges and are entitled to all the same benefits such as maternity and sick pay so should they not also receive the same pension’s rights as their full-time colleagues?

Posted by Edward Benson
0115 976 6211
ebenson@brownejacobson.com